Considering the aforesaid views, there is no iota of doubt that
Stridhan is a property of marriage and dispute relating to Stridhan
comes in the arena of Section 7 of the Act as quoted in para 11 of this
judgment.
(13). Interpreting Section 7 of the Family Court, Hon'ble Apex Court
in K.A.Abdul Jaleel Vs. T.A.Shahida 2003 (3) MPLJ 544 (SC) has
observed as under :
“It is now well-settled principle of law that the jurisdiction
of a court created specially for resolution of disputes of
certain kinds should be construed liberally.
The
restricted meaning if ascribed to Explanation (c) to
section 7 of the Family Courts Act, would frustrate the
object where for the Family Courts were set up. The
wording 'disputes relating to marriage and family affairs
and for matters connected therewith' in the preamble
must be given a broad construction. The statement of
objects and reasons of the Act would clearly go to show
that the jurisdiction of the Family Court extends, inter
alia in relation to properties of spouses or of either of
them which would clearly mean that the properties
claimed by the parties thereto as a spouse of other,
irrespective of the claim whether property is claimed
during the subsistence of a marriage or otherwise.
Family Court has jurisdiction to adjudicate upon any
question relating to the properties of divorced parties.
(Paras 14-17)”
Considering the said view, it is inferred that the Family Court has
jurisdiction to entertain such a matter that comes under the purview of
Section 7 of the Family Court Act.
HIGH COURT OF JUDICATURE AT JABALPUR, BENCH
GWALIOR.
SB:HON'BLE SHRI JUSTICE M.K.MUDGAL
First Appeal No.184 of 2004.
Balram Shivhare and Others.
Vs.
Smt. Suneeta Shivhare and Another.
(Passed on 9th of July, 2013).
PER HON'BLE MUDGAL.J.
Citation;AIR 2014(NOC) 507 MP
By filing this appeal under Section 96 of the Code of Civil
Procedure, appellants/defendants have challenged the validity and
legality of the judgment and decree dated 20.2.2004 passed by the
Court of II Additional District Judge Gwalior in Civil Suit No.53A of
2001 whereby, partly allowing the suit filed by the respondent/plaintiff
no.1 the trial Court has awarded Rs.50,000/- along with interest at the
rate of 9% per annum from the date of filing of the suit till realization of
the entire money as `Stridhan'. In this appeal, the appellants are
referred as `defendants' and respondents as `plaintiffs'.
(2).
The admitted facts are as follows :
(I).
Smt. Suneeta plaintiff no.1 and Hari Babu Shivhare (now
deceased) were married on 6.6.1991 at Gwalior. Out of their wedlock,
Shashank plaintiff no.2 was born. Hari Babu Shivhare died on
2.8.1999 in a jeep accident.
(3).
Facts in brief of the plaint are that the parents of the plaintiff
no.1 had given Rs.1,00,000/- along with chain and ring made of gold,
scooter and other articles at the time of ring ceremony. Besides other
gold ornaments as ear-rings, bangles, necklace and other articles
mentioned in para 2 of the plaint were given by her parents at the time
of marriage. Apart from this, some articles were also given by her in-
laws to her in the marriage. The total cost of the said articles has been
estimated at Rs.1,50,000/- by the plaintiff no.1 in para 9 of the plaint.
The plaintiff no.1 has further alleged that she is residing with her
parents at Gwalior because, she was forced to leave her in-laws
house by the defendants after the death of her husband. All the
articles including money given in the marriage to the plaintiff no.1 are
her Stridhan which were in possession of the defendants. Hence, the
suit for recovery of Stridhan was filed by the plaintiff on 1.5.2000
against the defendants.
(4).
Denying the allegations of the plaint, the defendants have
submitted that the plaintiff's parents (no.1) gave only Rs.10,000/- at
the time of ring ceremony. Neither Rs.1,00,000/- nor gold ornaments
referred in the plaint were given by the them to the plaintiff no.1. The
defendants have, further, stated that they had given to the plaintiff
no.1 Suneeta a few gold ornaments in the marriage which are still in
her possession. The scooter given by her parents was in her custody
and it was also sold by her. The defendants have, further, pleaded
that all the articles given to her by her parents and by them are in her
possession and thus, nothing remains in the possession of the
defendants. Therefore, the plaintiff no.1 is not entitled to get any relief
from the defendants as claimed by her in the plaint.
(5).
The learned trial Court after framing 11 issues and after
recording evidence of both the parties and having discussed the
recorded evidence in detail, has decreed the suit partly by the
impugned judgment and decree as stated earlier.
(6).
The following question arises for consideration in this appeal :
(I).
Whether, the learned trial Court had the jurisdiction to
entertain the suit?
(7).
Heard the arguments of both the parties and perused the
record.
(8).
Learned Senior counsel for the appellants has pointed out only
one aspect of the case I.e. the jurisdiction of the trial Court. The
learned Senior Counsel has strenuously argued that the trial Court
had no jurisdiction to entertain the suit as the Family Court Act
(referred to `the Act') came into force in Madhya Pradesh in 1986 I.e.
14.11.1986. As per contention of learned counsel under Section 7 of
the said Act, the exclusive jurisdiction has been given to the Family
Court to entertain the matters relating to property involved in a
marriage.
3
Stridhan comes under the purview of `property'. The
learned Senior counsel has cited the following judgments in his
submission.
“(I). Pratibha Rani Vs. Suraj Kumar and
another AIR 1985 SC 628;
(ii). K.A.Abdul Jaleel Vs. T.A.Shahida 2003
(3) MPLJ 524;
(iii). Sanjay Kumar Sharma Vs. Smt. Vidya
Sharma and Another AIR 2003 Orissa 89;
(iv). Dwarka Prasad Agrawal (D) by Lrs and
another Vs. B.D.Agarwal and Others 2004 (1)
JLJ 353;
(v). Vijendra (Brijendra) Singh Yadav Vs.
Smt. Rajkumari Yadav and Others 2005 (3)
JLJ 173;
(vi). Raheja Universal Ltd. Vs. NRC Ltd. And
Others (2012) 4 SCC 148;”
(9).
Refuting the submissions made by appellants' counsel, counsel
for the respondents submits that the appellants/defendants did not
challenge the jurisdiction of the suit before the trial Court in the written
statement. Besides, no ground for challenging the jurisdiction of the
trial Court has been stated in the appeal memo, because of which,
appellants are estopped from saying that the lower Court had no
jurisdiction to entertain the suit and the impugned judgment and
decree are without jurisdiction. The learned counsel has further
submitted that the dispute of the instant suit does not come in the
purview of Section 7 of the Family Court Act. As per requirement of
Section 7, the dispute should be between the parties to a marriage
whereas, in the instant case, the defendants are not party of marriage
in the plaint. The learned counsel has further argued that when the
suit was filed before the trial Court, the
Family Courts were not
established under Section 3 of the Family Court Act. Hence, it was not
possible for the plaintiff to have filed the suit before the Family Court.
Learned counsel has further submitted that no sufficient reason has
been shown on behalf of the appellants to interfere in the impugned
judgment.
10.
In chapter III of the family Court under Section 7, the following
provision has been made regarding jurisdiction:-
(1)
shall-
Subject to the other provisions of this Act, a Family Court
(a)
4
have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law
for the time being in force in respect of suits and
proceedings of the nature referred to in the explanation;
and
(b)
be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to
which the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings referred to in this sub-
section are suits and proceedings of the following nature, namely:-
(c)
a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of
them. The relief sought by the plaintiff for recovery of
Stridhan comes under the purview of Section 27 of the
Act.;
11.
At the outset, we have to consider whether Stridhan is a
property of the parties to a marriage.
In para 10 of Balkrishna
Ramchandra Kadam v. Sangeeta Balkrishna Kadam, AIR 1997 SC
3562, the Hon'ble Apex Court has held as under :
“The property, as contemplated by Section 27 is not the
property which is given to the wife at the time of
marriage only. It includes the property given to the
parties before or after marriage also, so long as it is
relatable to the marriage. The expression “at or about
the time of marriage” has to be properly construed to
include such property which is given at the time of
marriage as also the property given before or after
marriage to the parties to become their “joint property”,
implying thereby that the property can be traced to have
connection with the marriage. All such property is
covered by Section 27 of the Act”.
12.
In the same manner in Vinod Kumar Vs. State of Punjab and
Haryana AIR 1982 Pujab and Haryana 372, the Full Bench has taken
the view that Section 27 in no way abolishes Stridhan but expressly
recognizes the property exclusively owned by the wife. In this
connection, the Court observed thus :
“The express words of the provision refer to property
'which may belong jointly to both the husband and the
wife'. It nowhere says that all the wife's property
5
belongs jointly to the couple or that Stridhan is
abolished and she cannot be the exclusive owner
thereof. Indeed, in using the above terminology the
statute expressly recognize that property which
exclusively owned by the wife is not within the ambit of
Section 27 of the Hindu Marriage Act................ Equally
no other provision in the Hindu Marriage Act could be
pointed out which erodes the concept of Stridhan or in
any way incapacitates the Hindu wife to hold property
as an exclusive owner”.
Considering the aforesaid views, there is no iota of doubt that
Stridhan is a property of marriage and dispute relating to Stridhan
comes in the arena of Section 7 of the Act as quoted in para 11 of this
judgment.
(13). Interpreting Section 7 of the Family Court, Hon'ble Apex Court
in K.A.Abdul Jaleel Vs. T.A.Shahida 2003 (3) MPLJ 544 (SC) has
observed as under :
“It is now well-settled principle of law that the jurisdiction
of a court created specially for resolution of disputes of
certain kinds should be construed liberally.
The
restricted meaning if ascribed to Explanation (c) to
section 7 of the Family Courts Act, would frustrate the
object where for the Family Courts were set up. The
wording 'disputes relating to marriage and family affairs
and for matters connected therewith' in the preamble
must be given a broad construction. The statement of
objects and reasons of the Act would clearly go to show
that the jurisdiction of the Family Court extends, inter
alia in relation to properties of spouses or of either of
them which would clearly mean that the properties
claimed by the parties thereto as a spouse of other,
irrespective of the claim whether property is claimed
during the subsistence of a marriage or otherwise.
Family Court has jurisdiction to adjudicate upon any
question relating to the properties of divorced parties.
(Paras 14-17)”
Considering the said view, it is inferred that the Family Court has
jurisdiction to entertain such a matter that comes under the purview of
Section 7 of the Family Court Act.
(14). Now, the question that arises for consideration is that whether a
Family Court has exclusive jurisdiction to entertain a suit referred to
under Section 7 of the Act. In this regard, the learned counsel for the
appellants inviting the attention to Section 8 of the Family Court Act,
contended that after the Family Court Act coming into force, the Civil
Court has no jurisdiction to entertain the suit. Hence, if a decree is
passed by a civil Court, it being without jurisdiction shall have the
effect of nullity. Section 8 of the Family Court Act is as under :
“8.
Exclusion of jurisdiction and pending
proceedings.- Where
a Family Court has been
established for any area, -
(a)
no district court or any subordinate civil court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any
jurisdiction in respect of any suit or proceeding of
the nature referred to in the Explanation to that
sub-section;
(b)
no magistrate shall, in relation to such area, have
or exercise any jurisdiction or power under
Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974);
(c)
every suit or proceeding of the nature referred to
the Explanation to sub-section (1) of section 7
and every proceeding under Chapter IX of the
Code of Criminal procedure, 1973 (2 of 1974) :-
(I).
which is pending immediately before the
establishment of such Family Court before
any district court or subordinate court
referred to in that sub-section or, as the
case may be, before any magistrate under
the said Code; and
(ii). Which would have been required to be
instituted or taken before or any such
Family Court if, before the date on which,
such suit or proceeding was instituted or
taken, this Act had come into force and
such Family Court had been established
shall stand transferred to such Family Court on
the date on which, it is established.
(15). By reading of Section 8 of the Family Court Act, it is explicitly
clear that after coming into force of the said Act and after
establishment of a Family Court for any area under Section 3 of the
Act, a civil Court of that area shall not have jurisdiction to entertain the
disputes as defined under Section 7 of the Act.
(16). The
contention
submitted
by
learned
counsel
for
the
respondents to the effect that the defendant no.1 had not raised the
objection as regards the exclusive jurisdiction of Family Court before
the trial Court in the written statement, so that objection cannot be
raised before this Court in appeal, does not appear to be acceptable
wherein there is inherent lack of jurisdiction of a Court, it may be
raised not only in appeal, even it may be raised in execution
proceedings also. If a decree is passed by a Court without having
7
jurisdiction to entertain a suit, the decree would have the effect of
nullity. As held by the Hon'ble Apex Court in Urban Improvement
Trust Jodhpur Vs. Gokul Narain and another AIR 1996 SC 1819.
(17). Now, the question raised by learned counsel for the respondent
that arises for consideration is that whether, after establishment of the
family Court under Section 3 of the Act to the area from which, the
cause of action for filing the suit to the plaintiff had arisen in the instant
case ? Indisputably, the Family Courts Act, 1984 has come into force
in Madhya Pradesh since 19.11.1986
vide SO No.79/6/86 dated
14.11.1986 Gazetted of India. Extra: Part II Section 1. However, the
Family Courts under Section 3 of the Act to the area of Municipal
Corporation Gwalior were established from 8.3.2002 vide notification
No.F.No.4.1.2002 Twenty one-B(one) Family Court Act, 1984 dated
4.3.2002. On perusal of the said notification, it is crystal clear that the
family Courts for the area of Municipal Corporation Gwalior were
established on 8.3.2002. The instant suit was filed on 1.5.2000. Thus,
it is inferred that when the instant suit was filed, no family Court was in
existence for the area of Municipal Corporation, Gwalior. Resultantly, it
is inferred that the civil court had jurisdiction to entertain the said suit.
It is true that under Section 8 (c) of the Family Court Act, the provision
is made that after establishment of the Family Court under Section 3
of the Act, pending cases in the civil Court shall stand transferred to
such Family Court having jurisdiction for that area.
(18). Going through the record, it becomes clear that during
pendency of the instant case before the learned trial Court, family
Court came into force on 8.3.2002 for the jurisdiction of the area to
entertain the disputed matter.
Nonetheless, the instant case was
decided by the impugned judgment and decree dated 20.2.2004 by
the learned trial Court. It is also true that no objection was raised by
either party before learned trial court during pendency of the suit
regarding section 8 of the Act. In spite of the fact that after
establishment of the Family Court, the Civil Court had no jurisdiction to
proceed with the suit as the civil Court's jurisdiction was ousted by the
Family Court set up under Section 3 of the Family Court Act.
Moreover, under Section 8 (c) of the Act, the provision has been made
relating to the pending cases for which, it has been provided that the
8
pending cases shall stand transferred to the Family Court. What would
be the effect of new enactment on the pending cases which were filed
before the competent Court having jurisdiction to entertain them at the
time of filing of the cases. Similar legal point was considered by the
Hon'ble Apex Court in Shri Inacio Martins Deceased through Lrs
Vs. Narayan Hari Naik and Others AIR 1993 SC 1756 and in para 9,
it has been held as under :
“Before we answer those questions we must decide on the
impact of the fifth amendment on pending litigation. The
question whether the fifth amendment is prospective or ret-
rospective really recedes in the background if we examine
the question from the angle whether the civil court can de-
cide any question falling within the jurisdiction of the special
forum under the Act in a pending litigation in the absence of
an express provision in that behalf. If the question of ten-
ancy in regard to agricultural land cannot be decided by the
civil court under the Act and there is no express saving
clause permitting the civil court to decide the same, it is ob-
vious that any decision rendered by the civil court would be
without jurisdiction. A similar situation did arise in the con-
text of another statute. In Shah Bhojraj Kuverji Oil Mills and
Ginning Factory v. Subhash Chandra Yograj Sinha1 the
facts were that the landlord had filed a suit for eviction on
April 25, 1957 in the regular court, i.e., the Court of the Joint
Civil Judge (Junior Division), Erandol, which admittedly had
jurisdiction to pass a decree for possession of the demised
premises. However, during the pendency of the suit, a noti-
fication was issued under Section 6 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, (herein-
after called ‘the Rent Act’) applying Part II of the Act to
areas where the property in question was situate. The ten-
ants claimed protection of Section 12 in Part II of the Rent
Act which deprived the landlord of the right of possession
under certain circumstances. The question which arose for
consideration was whether the tenants were entitled to the
protection of Section 12 in pending cases and if yes, its ef-
fect. Since Section 12 of the Rent Act was held to be pro-
spective, the question which arose for consideration was
whether its protection could be extended to tenants in
pending litigation. This Court pointed out that the point of
time when sub-section (1) of Section 12 operates is when
the court is called upon to pass a decree for eviction. Thus,
said this Court, the language of the sub-section applies
equally to suits pending when Part II comes into force and
those to be filed subsequently. The contention of the land-
lord that the operation of Section 12(1) is limited to suits
filed after the Rent Act comes into force in a particular area
was not accepted. Applying the same principle to the facts
of the present case, we have no hesitation in concluding
that the provisions of the fifth amendment would apply to
pending suits also. However, the Act does not preclude the
institution of a suit by a tenant for restoration of possession
from a trespasser. If the defendant who is sued as a tres-
passer raises a plea of tenancy, a question arises whether
his plea of tenancy can be decided by the civil court as in-
cidental to the grant of relief for possession or is the civil
court precluded from deciding the same in view of Section 7
read with Section 58(2) of the Act. As pointed out earlier,
Section 7 in terms states that if any question arises whether
any person is a tenant or should be deemed to be a tenant
under the Act, the Mamlatdar shall decide such question.
The jurisdiction is, therefore, vested in the Mamlatdar under
Section 7 of the Act and Section 58(2) specifically bars the
jurisdiction of all other courts to settle, decide or deal with
any question which is by or under the Act required to be
settled, decided or dealt with by the Mamlatdar. Section 8(2)
has limited operation where a person referred to in Section
4 has been evicted on or after July 1, 1962. In that case he
would be entitled to recover immediate possession of the
land in the manner prescribed by or under the Act unless it
is shown that his tenancy was terminated in the manner au-
thorised by Section 9. In the present case, the plaintiff came
to court contending that even though his lease was not ter-
minated as provided by Section 9 of the Act, defendant 1
had dispossessed him by an act of trespass. He, therefore,
sought possession of the demised property from the tres-
passer, defendant 1. He impleaded the owner of the land as
defendant 2 on the plea that she had colluded with defend-
ant 1. Defendant 1 raised a contention in his written state-
ment that he was lawfully inducted as a tenant in the lands
in question by the owner, defendant 2. In other words, he
disputed the plaintiff’s contention that he was a trespasser
and pleaded tenancy. If his plea was found to be well-foun-
ded, he would be entitled to retain possession but not other-
wise. Therefore, the question which arose in the suit was
whether defendant 1 proved that he was a tenant in respect
of the land in question. This question could not be gone into
by the civil court in view of the clear language of Section 7
read with Section 58(2) of the Act. What procedure should
the court follow in such situations? It would not stand to
reason to non-suit the plaintiff who had filed the suit in a
competent court having jurisdiction to try the same merely
because of the subsequent change in law. The proper
course, therefore, would be one which was followed by the
Bombay High Court in Bhimaji Shanker Kulkarni v. Dund-
appa Vithappa Udapudi2. That was a case arising under the
provisions of the Bombay Tenancy and Agricultural Lands
Act, 1948. The lands in question were agricultural lands.
Section 29(2) of that law provided that no landlord shall ob-
tain possession of any land or dwelling house held by a ten-
ant except under an order of the Mamlatdar on an applica-
tion made in that behalf in the prescribed form. Section
70(b) next provided that for the purposes of the Act, one of
the duties and functions to be performed by the Mamlatdar
is to decide whether a person is a tenant or a protected ten-
ant or a permanent tenant. Section 85(1) laid down that no
civil court shall have jurisdiction to settle, decide or deal with
any question which is required to be settled, decided or
dealt with by the Mamlatdar under the statute. The law was
silent as to how a dispute of this nature raised in a suit filed
for eviction on the footing that the defendant is a trespasser
should be dealt with by the civil court. This question
squarely arose for consideration by the Bombay High Court
in Dhondi Tukaram v. Dadoo Piraji3 wherein that court ob-
served as under:
“Therefore, we hold that in a suit filed against the defendant
on the footing that he is a trespasser, if he raises the plea
that he is a tenant or a protected tenant, the civil court
would have no jurisdiction to deal with that plea .... We
would, however, like to add that in all such cases where the
civil court cannot entertain the plea and accepts the objec-
tion that it has no jurisdiction to try it, it should not proceed
to dismiss the suit straightway. We think that the proper pro-
cedure to adopt in such cases would be to direct the party
who raises such a plea to obtain a decision from the Mam-
latdar within a reasonable time. If the decision of the Mam-
latdar is in favour of the party raising the plea, the suit for
possession would have to be dismissed, because it would
not be open to the civil court to give any relief to the landlord
by way of possession of the agricultural land. If, on the other
hand, the Mamlatdar rejects the plea raised under the Ten-
ancy Act, the civil court would be entitled to deal with the
dispute on the footing that the defendant is a trespasser.”
Pursuant to the court’s recommendation, the Bombay
Legislature introduced Section 85-A which provided that
if in any suit instituted in a civil court issues which are
required to be settled, decided and dealt with by any au-
thority competent to settle, decide and deal with the
same arise, the civil court shall stay the suit and refer
such issues to such competent authority for determina-
tion under the statute. Unfortunately even under the Act
with which we are concerned the legislature though
aware of Section 85-A has not chosen to make any pro-
vision for dealing with such situations. We are, there-
fore, of the opinion that it would be just and fair that the
issue whether defendant 1 was a tenant in respect of
the lands in question should be referred to the Mamlat-
dar for decision and after his decision is received by the
civil court if the issue is held against defendant 1, the
civil court may consider passing of a decree in eviction
but if on the other hand he is held to be tenant, the civil
court may be required to dismiss the suit”.
The same view has been taken by the Hon'ble Apex Court in Mrs.
Judith Fernandes and Others Vs. Conceicao Antonio Fernandes
and another AIR 1996 SC 2821.
(19). Having gone through the Apex Court's judgment, it is inferred
that after coming into force of the Act and establishment of the Family
Court under Section 3 of the Act
on 8.3.2002 in the Municipal
Corporation area Gwalior, the learned trial Court had no jurisdiction to
proceed
with the suit. Consequently, the impugned judgment and
decree passed by learned Court is found to be without jurisdiction. On
account of this, the impugned judgment and decree has the effect of
nullity. It is also inferred that after establishment and coming into force
of the Family Court, all the proceedings after 8.3.2002 cannot be held
to be legal. However, entire suit cannot be dismissed because, when
the suit was filed on 1.5.2000, the learned trial Court had jurisdiction to
entertain the suit and during pendency of the suit, jurisdiction of the
learned trial Court was ousted by coming into force of the Family Court
as stated earlier. In view of the facts, it would be apt to transfer the
case as per provisions of Section 8 (c) of the Act from learned trial
Court to the Family Court Gwalior which has jurisdiction to entertain
the suit after its establishment under Section 3 of the Act.
(20). Having considered the submissions made by the learned
counsels for both the parties, allowing the appeal,
the impugned
judgment and decree passed by learned trial Court is hereby set-aside
being without jurisdiction and all the proceedings of the trial Court after
establishment of the Family Court at Gwalior on 8.3.2002 are also
cancelled as being found to be without jurisdiction. The suit is
transferred as per Section 8 (c) of the Act to the Family Court Gwalior
from learned trial Court for a fresh decision as per provisions of law
mentioned before. The parties are directed to appear before the
Family Court Gwalior on 26.8.2013. Office is directed to send the
record along with a copy of this judgment to the trial Court and the trial
Court in turn shall immediately transfer it to the Family Court and
inform the parties concerned for appearance before the Family Court
Gwalior on 26.8.2013. The Family Court is directed to decide the case
on the priority as early as possible as the case is old one and has
been pending since 2000. Considering the facts, no order as to the
costs.
Decree be drawn up accordingly.
Rks.
(M.K.Mudgal)
Judge.
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